Gibbons v. Ogden, Law, and Society in the Early Republic

1: Steam Power and Patent Law: Development in the Eighteenth Century

CHAPTER 1 Steam Power and Patent Law Development in the Eighteenth Century Perseverance against Great Odds O M, A , , a crowd gathered at the Front Street wharves on the banks of the Delaware River in Philadelphia. Curious , the people had come to watch John Fitch and Henry Voight launch their experimental steamboat, aptly named Perseverance. The inventors were an interesting pair. Fitch radiated detached impatience, whereas the jovial Voight conversed with the speculators in the crowd. A “crank-and-paddle” engine, which consisted of six sets of steam-powered oars, propelled the narrow craft. Hoping to attract investors, Fitch offered free rides aboard Perseverance to influential observers . Several leading politicians, including Oliver Ellsworth (who would later serve as the second chief justice of the U.S. Supreme Court), Samuel Johnson, Rufus King, and Edmund Randolph, accepted rides in the strange-looking craft, which churned several hundred yards upstream before returning to the dock. Johnson later sent a congratulatory certificate to Fitch; however, neither he nor any of the other spectators offered financial support.₁ While Fitch and Voight promoted their invention, Johnson, Ellsworth, and their colleagues at the Philadelphia Convention meeting three blocks away sought support for their own creation , the U.S. Constitution. On August , two days before Fitch and Voight’s  demonstration, James Madison had spearheaded the debate over a constitutional clause for the “promotion of useful arts,” which the convention approved on September , .² Attempts by Fitch and his colleagues to create steamboat businesses in an era of economic uncertainty and rapid political change were the subject of a vital chapter in the history of American transportation. Fitch hoped that the fledgling federal government would provide European-style legal protection for his inventions. In the sixteenth and seventeenth centuries, industrial development had unleashed advancements in iron forging, building construction, and steam power. Modernization had also created powerful nation-states that granted patents and other exclusive monopolies to increase royal authority. European inventors often secured aristocratic patrons who helped them obtain royal patents in return for a share of the profits. Yet in America, despite the abundance of land and waterways that made it a natural arena for the development of steam power, European patent systems were unrealistic because of the sheer size and sparse population of the frontier.  Gibbons v. Ogden, Law and Society John Fitch. “Portrait of John Fitch,” in James T. Lloyd, Lloyd’s Steamboat Directory and Disasters on Western Rivers (Cincinnati, OH: James T. Lloyd, ),  Early inventors such as Fitch and Voight had to find new methods to legally defend their inventions. Rather than discovering a single solution for their problems , these entrepreneurs learned to rely on a combination of state-granted monopolies and personal reputations to discourage competitors. In particular, Fitch learned than in an increasingly democratizing American society, cultivating a reputation as a heroic scientist who was laboring for the public good would help him secure the customers, patrons, and public support that strong patent laws would have provided in European circles. In this regard, Fitch did more than pioneer steam technology. He developed legal precedents and business techniques that future steamboat inventors would adopt with increasing regularity. The Industrial Revolution The framers of the U.S. Constitution were not the first political leaders to consider the merits of regulating scientific inventions.³ Since the late Middle Steam Power and Patent Law Development  John Fitch’s steamboat at Philadelphia. “John Fitch’s Steamboat at Philadelphia,” in E. Benjamin Andrews, History of the United States from the Earliest Discovery of America to the Present Time (New York: Charles Scribner’s Sons, ), : Ages, European governments had recognized the value of encouraging technological achievements by promising inventors certain exclusive rights over their discoveries. In the s, the English government took the lead in promoting scienti fic development through royally granted monopolies. Under that system, monarchs issued monopolies to political allies to raise money or to protect local industries from foreign competition. In , to protect English products from cheaper Italian imports, Henry VI awarded the first British patent to John of Utynam, for stained-glass manufacturing. And throughout the fifteenth and sixteenth centuries, the English monarchy granted patents to ironworkers, stonemasons , shipwrights, and other artisans. These franchises took several legal forms: charters to private corporations, letters patent with directives to the public, and closed letters that provided private instructions to key individuals. Just as titles of nobility gave landowners the right...